Rural Development Bank Ltd. & Ors vs Shri Subodh Kumar Bhadra & Ors
2022 Latest Caselaw 967 Cal

Item no. 06


                IN THE HIGH COURT AT CALCUTTA
                           CIVIL APPELLATE JURISDICTION
                                  APPELLATE SIDE

Present:
The Hon'ble Justice T.S. Sivagnanam
              And
The Hon'ble Justice Hiranmay Bhattacharyya


                               MAT 617 of 2019
                                     with
                IA No. CAN 2 of 2019 (Old CAN No. 5519 of 2019)



                West Bengal State Co-operative Agriculture &
                   Rural Development Bank Ltd. & Ors.
                                     vs.
                    Shri Subodh Kumar Bhadra & ors.



For the Appellants   : Mr. Partha Sarathi Sengupta, learned Senior Advocate
                       Mr. Malay Kumar Ray


For the Respondents :    Mr. Pratip Kumar Chatterjee

For the State        :   Mr. Raja Saha
                         Ms. Tanusri Chanda


Heard on             : 17.02.2022 & 03.03.2022

Judgment on          : 03.03.2022


T.S. Sivagnanam J.:

This intra court appeal is directed against an order dated

05.10.2018 passed in W.P. 12458(W)/2016 filed by the respondent

herein. In the said writ petition the prayers sought for by the

respondent was to quash the order dated 18.03.2016 passed by the

appellant in Memo No. 2423/Admn/2700 as also to cancel the

appointment of the private respondent nos. 8 to 12 therein and for a

consequential direction to give appointment to the writ petitioner as

sub-staff in the said Co-operative Society. The said writ petition has

been allowed by the impugned order dated 05.10.2018.

Aggrieved by the same the appellant bank is before us by

way of this appeal. The first issue to be considered as to whether the

Court was justified in issuing the directions as contained in the

penultimate portion of the impugned order, which reads as follows:

"(I) That the Bank shall take steps within a period of

eight weeks from the date of communication of this

order to the MD/ the Respondent No.4 to approve

SKB/the writ petitioner to the cadre of SS.

(II) The appointment, as directed above, shall be treated

to be notional on and from 2010 and, prospective in

terms of actual benefits on and from the date of his

appointment.

(III) The petitioner shall be treated qua his service record

to service of the Private Respondent No.1. Shib Sadhan

Roy, at serial No.4 of the panel of four as per Resolution

of the BOD dated 12th August, 2000.

(IV) On the completion of eight weeks from the date of

receipt of communication of this order by the MD/the

Respondent No.4, the petitioner if not already

appointed, shall be paid a consolidated sum equivalent

to the basic pay of Shib Sadhan Roy (supra) the private

respondent No.11 and a 2010 appointee. Such

consolidated sum shall continue to be paid to the

petitioner/SKB till the date of his actual appointment.

(V) The order impugned dated 18th March, 2016 stands

thus set aside."

Before we examine as to what relief the respondent/writ

petitioner could have been granted, first we have to examine as to

whether the learned writ court was correct in issuing the above referred

directions. On carefully going through the impugned order we find that

though the learned writ court had made very strong observations and

findings to the effect that the appointment of the private respondents in

the writ petition was illegal and voidable, it did not set aside their

appointment. We are conscious of the fact that the private respondents

in the writ petition were appointed in the year 2000 and 2010. This

finding has been recorded by the learned writ court in more than two

places. If such is the position, the question would be whether a

direction can be issued by the learned writ court to appoint the

respondent/writ petitioner in the cadre of sub-staff. If according to the

learned writ court, the appointment of the private respondents, which

was challenged by the respondent/writ petitioner, was illegal and

voidable and if the learned writ court was of the opinion that those

appointments cannot be set aside then by issuing a direction to appoint

the respondent/writ petitioner would tantamount to perpetuating

illegality. Therefore, no such direction could have been issued by the

learned writ court by directing the appellant to appoint the

respondent/writ petitioner as a sub-staff. If such is the conclusion both

on facts as well as law, the further direction of the learned writ court to

treat the appointment of the respondent/writ petitioner to be notional

on and from 2010 is wholly unsustainable in the eye of law. That apart,

the learned writ court has directed that the respondent/writ petitioner

shall be treated qua his service record to service of the private

respondent No. 11/Shib Sadhan Roy at serial no. 4 of the panel of four

as per resolution of the Board of Directors dated 12.08.2000. If the

appointment of the said private respondent was illegal and voidable,

according to the learned writ court, the question of placing the

respondent/writ petitioner above private respondent no. 11 does not

arise. Therefore, such direction is unknown to service jurisprudence.

The next direction issued by the learned writ court is by directing that if

such appointment is not given to the respondent/writ petitioner within

the time stipulated, he should be paid a consolidated sum equivalent to

the basic pay of the private respondent no. 11/Shib Sadhan Roy. In our

considered view, such direction is wholly alien to service jurisprudence

and could not have been granted.

In the light of the above finding and the conclusion arrived

at by us would be sufficient to set aside the order in the writ petition,

nevertheless as the learned counsel for the appellant and the

respondent/writ petitioner made very elaborate submissions, we proceed

to test the correctness of the same.

The present appeal arises out of the order dated 05.10.2018

in W.P. 12458(W)/2016. This is the third writ petition filed by the

respondent/writ petitioner. The first writ petition being W.P.

1935(W)/2001 wherein the writ petitioner sought for a direction to direct

the appellant to consider his representation wherein he sought for

regularization of his service on the ground that he has completed 240

days of continuous service in the appellant Co-operative Society. The

writ petition was disposed of by an order dated 16.05.2001 directing the

representation given by the respondent dated 22.01.2001 to be disposed

of within a specified period. The respondent filed contempt application

being CPAN 347/2002 alleging willful disobedience of the direction

issued in the writ petition. The learned writ court had directed the

affidavit of compliance to be filed and noting that the order has been

passed on 02.09.2005, the contempt petition was closed.

In the second writ petition filed by the writ petitioner in W.P.

8861(W)/2006, the prayer sought for by the appellant was to

permanently absorb him as a regular employee of the appellant in view

of the resolution dated 12.08.2000 of the Board of Directors of the

appellant. The case of the respondent/writ petitioner rests upon certain

observations made in the said order dated 17.08.2015 which also

weighed heavily in the mind of the learned writ court while passing the

impugned order dated 05.10.2018. Learned counsel for the

respondent/writ petitioner pointed out that the learned counsel for the

State had submitted that no approval was sought for by the appellant

bank regarding waiver of qualification in the matter of appointment of

sub-staff or for that matter any appointment to be given by the bank as

sub-staff either in the year 2000 or in 2010. The learned counsel

emphatically submitted that the learned writ court observed that there

has neither been any waiver of qualification regarding appointment of

regular sub-staff of the bank nor any appointment by the selection

process taken placed in the year 2000 and 2010. According to the

learned counsel, the order dated 17.08.2015 passed by the learned writ

court has attained finality and, therefore, the learned writ court was

justified in allowing the writ petition by the impugned order passed on

05.10.2018. In our considered view, the submission made by the

learned counsel for the respondent/writ petitioner cannot be accepted

for more than one reason. Firstly, the observation of the learned writ

court are after noting the submission made by the learned counsel for

the State. The learned writ court has not recorded the arguments of the

appellant bank on such submissions. That apart, it is not known as to

how the learned writ court came to the conclusion that there is no

waiver of qualification regarding appointment of regular sub-staff nor

any appointment by the selection process which had taken place in the

year 2000 and 2010. There is no material on record to come to such

conclusion. In any event, such conclusion could not have been arrived

at without giving an opportunity of hearing to the parties and after

adjudicating the facts. Therefore, at best it can be construed as an

observation and not a positive finding of fact. Secondly, learned writ

court did not issue any positive direction in the said writ petition as

sought for by the respondent herein but only directed the representation

to be considered by the appellant bank after giving an opportunity of

hearing to the writ petitioner by passing a reasoned order and to

communicate the same to the writ petitioner. A direction to consider a

representation should be meant to be understood as a direction to

consider the representation on merits and in accordance with law. In

any event, the learned writ court would not be entitled to grant relief of

absorption of a casual employee, as it cannot go into the aspect as to

whether the employee has completed the requisite number of days of

qualifying service. These aspects are alien to writ jurisdiction.

Therefore, the penultimate direction issued by the learned writ court

cannot be faulted as the learned writ court took note of the legal

position and merely directed the consideration of the representation.

Thus, observations made by the learned writ court in its order dated

17.08.2015 regarding the submission of the learned counsel for the

State or any other observation cannot be construed to be a finding to be

binding upon the appellant Co-operative Society.

Once we steer clear of this aspect we have to necessarily

hold that the findings rendered by the learned writ court in the

impugned order by placing heavy reliance on those observations

contained in the order dated 17.08.2015 in W.P. 8861(W)/2006 have to

be held to be unsustainable in law.

The case of the respondent/writ petitioner is that in the year

1998, he was engaged as a casual worker on a daily payment of Rs.40/-

per day. Subsequently, in the year 2000 the selection process appears

to have been done and a panel was drawn. The writ petitioner's case is

that in the resolution passed by the appellant in its meeting held on 12 th

August 2000 five candidates, who are graduates, were selected and the

name of the writ petitioner was placed in a panel of four names in which

the name of the writ petitioner was in serial no.3. According to the writ

petitioner, the appointment of those five candidates in the year 2000 is

illegal. The learned writ Court was also of the view that it is illegal and

voidable, yet did not set aside those appointment being conscious of the

fact that they were in employment from the year 2000 onwards. The

writ petitioner alleges that in the year 2010 two other candidates, whose

names where in the panel of four were given appointment and this,

according to the writ petitioner, is illegal and he should have been given

appointment in the year 2010. Therefore, the writ petitioner would

contend that the appointment of those two candidates in 2010 has to be

set aside. There has been no attempt made by the petitioner at any

earlier point of time to challenge the appointments made by the

appellant either in the year 2000 or 2010. For the first time, in the year

2016 in WP 12458 (W) of 2016 such attempt was made. In any event if

we test as to what right would flow in favour of the writ petitioner merely

by being empanelled in the year 2000, we note the legal position that the

panel of wait listed candidates expires after a time period and it would

loose efficacy after two years at the maximum unless there is any other

rule which provides for longevity of the panel beyond two years. The

appellants have taken a definite stand in all the proceedings that the

panel expired in the year 2002. Even assuming the arguments of the

learned counsel for the writ petitioner is to be accepted for argument

sake there is no vested right in any candidate merely because his name

has been empanelled. Thus, even assuming that the name of the writ

petitioner finds place in the panel no vested right accrues for being

considered and appointed on regular basis. The appellant had taken a

stand that out of four persons, whose names were there in the panel

only two of them applied for the fresh selection during the year 2010.

The writ petitioner was not in casual engagement at the relevant time

and therefore not eligible to apply because the branch in which the writ

petitioner was engaged as on daily basis was closed. After following a

selection process in 2010 candidates were appointed. They are working

and only in the year 2016 the writ petitioner seeks to challenge their

appointment.

Taking note of the facts and circumstances of the case such

a challenge at the behest of the respondent/writ petitioner cannot be

entertained not only on the ground of inordinate delay in challenging the

same but also on the ground that the writ petitioner has no locus stand

to challenge those appointments as he claims to get a right because of

his empanelment and settled law on the said issue is that no such right

much less vested right accrues in favour of empanelled candidate for

regular appointment.

The learned counsel appearing for the respondent/writ

petitioner would vehemently contend that the exercise of power by the

Managing Director of the cooperative society by passing the resolution

relaxing the qualification are all illegal and the State Government has

taken a specific stand in the earlier writ petition that no approval has

been obtained would all go to show that the appointment of the private

respondents are illegal. As observed earlier, it is not for the respondent

to question the power of the appellant society as those resolutions and

decisions taken by the appellant were never the subject matter of any

challenge earlier and even in the writ petition filed in 2016 which has

resulted in the impugned order there has been no challenge to the

decision of the appellant society with regard to any resolution passed by

the bank waiving certain qualifications prescribed for appointment.

Thus, we are of the considered view that the learned writ

Court committed an error in issuing the directions as referred to above,

which in our view are wholly beyond the scope of the claim made by the

respondent/writ petitioner.

For all the above reasons, we are constrained to set aside

the order passed in the writ petition. Accordingly, the appeal and the

connected application are allowed and the order passed in the writ

petition is set aside and consequently the writ petition is dismissed.

Urgent Photostat certified copy of this judgment, if applied

for, be delivered to the learned advocate for the parties, upon compliance

of all formalities.

(T. S. Sivagnanam, J.)

(Hiranmay Bhattacharyya, J.)

RP/Amitava